On the Right to Link

Today we filed a comment with the United States Copyright Office on their study of the “Right of Making Available.” This proposed right, which would be an explicit addition to existing copyright law in the U.S., strongly restricts the ability to link to materials on the open web, reserving for copyright holders “communication to the public” of the existence of works on the internet. As the Copyright Office explains:

Two international treaties to which the United States is a party – the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (collectively, the “WIPO Internet Treaties”) – require member states to recognize the rights of making available and communication to the public in their national laws. The treaties obligate member states to give authors of works, producers of sound recordings, and performers whose performances are fixed in sound recordings the exclusive right to authorize the transmission of their works and sound recordings, including through interactive platforms such as the Internet, where the public can choose where and when to access them.

DPLA Legal Committee member Dave Hansen helped us draft a cogent response, an excerpt of which we reprint below. We hope you’ll agree that linking is an essential—perhaps the essential—element of the open web, and that we must work together to keep that option fully available to us all.

DPLA has strong reservations about the creation of a broad making available right because we believe such a right would inhibit free and open linking to works that should be legitimately made available online. The potential chilling effect that a making available right would have on the ability of organizations like DPLA and other libraries to deliver content in meaningful ways is great.

Libraries have already digitized large numbers of works, but—as the Copyright Office is aware—have been faced with significant uncertainty about the copyright status of works in their collections. Some of those works are made available on the belief that they are in the public domain; others are made available pursuant to an assertion of fair use based on the facts and circumstances unique to the work and the collection of which it is a part. For a third-party organization such as DPLA that links to such content, it would be nearly impossible to adequately assess the copyright status of all of the works in linked library collections. But a broad making available right could impose liability on DPLA for linking to that content nonetheless. Such a right would stifle efforts to take the cultural treasures held by libraries, which are often constrained to the silos of an individual organization’s servers, and make them more accessible and usable for the world.

Because of these concerns, DPLA believes that a making available right would do more harm than good. Whatever the approach recommended by the Copyright Office, DPLA strongly urges the Office to take steps to preserve free and open linking. The ability to link unhindered is critically important for the continued development of initiatives like DPLA and for the World Wide Web as a whole.